Academic journal article Chicago Journal of International Law

International Law Adrift: Forum Shopping, Forum Rejection, and the Future of Maritime Dispute Resolution

Academic journal article Chicago Journal of International Law

International Law Adrift: Forum Shopping, Forum Rejection, and the Future of Maritime Dispute Resolution

Article excerpt

I. Introduction

Imagine: In 2019, maritime disputes in the East and South China Seas remain unresolved. As part of the promised renegotiation of the "trade deal" between the U.S. and China, Washington agrees to discontinue its military patrols in China's near seas in return for a Chinese agreement not to pursue trade remedies at the World Trade Organization (WTO) for new American tariffs on manufactured goods. The Philippines and Thailand are firmly ensconced in the Chinese sphere of influence: American ships no longer call in their ports and Chinese cash flows to the bank accounts of their politicians. Vietnam and Japan continue to resist Chinese dominance in the Asian littoral, but their cause seems more dire by the day. China declares large parts of the high seas off-limits to foreign militaries and subjects foreign-flagged commercial vessels to arbitrary inspections.

In an effort to appeal to the international community, Tokyo and Hanoi file legal claims under the United Nations Convention on the Law of the Sea (UNCLOS or Convention), the premier international agreement governing such disputes.1 When it was first negotiated in 1982 and finally came into effect in 1994,2 UNCLOS's various features, including its binding dispute resolution system, were considered to be at the leading edge of international law.3 Part XV of the Convention offers several choices of forum to resolve disputes.4 How, then, might a state strategize to pick the optimal forum? Did any of the countries involved select a preferred venue when they ratified the Convention? Is there any forum that is particularly well suited to this area of maritime law? Might any one type of procedure give the petitioners an advantage?

This particular dispute, however, comes with a twist. Recalling how China ignored an adverse arbitral award by the Permanent Court of Arbitration (PCA) in 2016,5 Japan and Vietnam take their cases to internationally established courts: the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). Both claims succeed on the merits, and the courts issue strong condemnations of China's actions. However, following the precedent it set before and the pattern of behavior of the world's other major military powers, China maintains course. The Convention, which represented the culmination of centuries of legal developments to open the seas to all, has no effect on the sudden closure and balkanization of shipping lanes in East Asia.6

This scenario may never come to pass. Countries regularly make use of UNCLOS's advanced, binding dispute resolution system. At the time of writing, eight cases are pending before three separate bodies under the Convention, contributing to a budding field of case law interpreting and applying the Convention that has developed over the past two decades. Although scholars have analyzed the forum selection process,7 several new developments have occurred within the last few years that necessitate another look. Tribunals have begun to emerge from the niches they created for themselves early on, and individual states have experimented with using more than one forum to resolve longstanding debates with their neighbors.

However, the future is uncertain. The U.S. has never ratified the Convention due to domestic opposition.8 Meanwhile, Russia and China, both signatories for nearly two decades,9 have rolled back their commitment to international legal tribunals by refusing to participate in the binding resolution of disputes-or even the proceedings that produce those resolutions-in the last four years.10 As the three largest military powers in the world and most important actors in the U.N. Security Council, their continued opposition to the Convention creates a worrying trend for international law. Their refusal to abide by judgments issued by legally constituted forums sets a precedent for smaller nations to disregard binding rulings, relegating the Convention's method of resolving disputes to obscurity and encouraging powerful states to impose terms on their weaker neighbors. …

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